Demitri Corbin v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. See document for further information. (lwag)

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 DEMITRI CORBIN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ) Case No. CV 17-00523-KES ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) ) ) ) 19 20 Plaintiff Demitri Corbin (“Plaintiff”) appeals the final decision of the Social 21 Security Commissioner denying his applications for Disability Insurance Benefits 22 (“DIB”) and Supplemental Security Income (“SSI”). For the reasons discussed 23 24 25 26 27 28 below, the Commissioner’s decision is AFFIRMED. I. BACKGROUND Plaintiff graduated from college with bachelor’s degree in acting and directing. Administrative Record (“AR”) 59. For more than twenty years, he worked in the catering industry as a waiter, bartender, and banquet captain while 1 also pursuing his interest in the performing arts. AR 60. In May 11, 2012, he 2 injured his back in an industrial accident while helping coworkers push a heavy 3 pallet of bar products up a ramp.1 AR 62, 1026. Pushing pallets was “out of [his] 4 job description,” but he was trying to help a short-staffed loading crew. Id. A 5 November 2012 MRI revealed lumbar spine disc injuries, and he underwent 6 reparative surgery in August 2013. AR 65, 726. As early as May 2013, he sought 7 authorization through his employer’s workers’ compensation insurer to obtain a 8 cervical MRI, but he did not obtain one until July 2014.2 AR 66, 761. Based on 9 those MRI results, in January 2016, he had multi-level cervical spine fusion 10 11 surgery. AR 67. Plaintiff filed his relevant benefits application in May and June of 2015, 12 alleging a disability onset date of May 12, 2012. AR 252-57. An Administrative 13 Law Judge (“ALJ”) conducted a hearing on June 4, 2016, at which Plaintiff, who 14 was represented by an attorney, appeared and testified. AR 55-99. The ALJ issued 15 an unfavorable decision on August 16, 2016. AR 33-54. 16 The ALJ found that Plaintiff does not suffer from any severe mental 17 impairment. AR 39. The ALJ, however, found that Plaintiff suffers from the 18 severe physical impairments of lumbar and cervical degenerative disc disease 19 (status post two surgeries) and left middle trigger finger. AR 39. Despite these 20 impairments, the ALJ found that Plaintiff retained the residual functional capacity 21 22 23 24 25 26 27 1 The ALJ indicated that Plaintiff suffered a second, work-related accident injuring his back on May 11, 2013. AR 44, citing AR 508 (medical progress note indicating date of accident was “5-11-13”). The better interpretation of the record is that the 2013 accident date at AR 508 was a typographical error and only one accident occurred in 2012. 2 The insurer’s initial position was that Plaintiff’s lower back was the only body part injured by Plaintiff’s work accident. AR 1017. 28 2 1 (“RFC”) to perform light exertional work3 with additional limitations on certain 2 postural and manipulative activities. AR 41. Due to his cervical spinal fusion 3 surgery, the ALJ precluded Plaintiff from work that requires “turning his head 4 from side to side.” AR 42. 5 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 6 found that Plaintiff could perform his past relevant work as a waiter, bartender, 7 theater arts teacher, teacher’s aide, or banquet captain (as generally performed, not 8 as actually performed). AR 48. Based on these findings, the ALJ concluded that 9 Plaintiff was not disabled. Id. 10 II. 11 ISSUES PRESENTED 12 Issue One: Whether the ALJ satisfied his obligations under Social Security 13 Ruling (“SSR”) 00-4p which requires ALJs to “[i]dentify and obtain a reasonable 14 explanation for any conflicts between occupational evidence provided by VEs … 15 and information in the Dictionary of Occupational Titles (DOT) … and [e]xplain 16 in the determination or decision how any conflict that has been identified was 17 resolved.” Dkt. 17, Joint Stipulation (“JS”) at 3. 18 The DOT is silent concerning the head-turning requirements of listed jobs. 19 Plaintiff argues that whenever a VE testifies about a job requirement not in the 20 DOT, the ALJ must obtain an explanation of the VE’s opinion. Plaintiff further 21 argues that the explanation the VE gave in this case was not legally sufficient. JS 22 at 9. 23 24 25 26 27 28 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b) and 416.967(b). 3 1 2 Issue Two: Whether the ALJ erred in discounting Plaintiff’s testimony concerning the limiting effects of his impairments. JS at 3. 3 4 Issue Three: Whether the ALJ’s assessment of the medical evidence is supported by substantial evidence. Id. 5 6 For ease of discussion, the Court divided Issue Three into the following three sub-issues: 7 8 Issue Three A: Whether the case should be remanded to permit the ALJ to consider Plaintiff’s new evidence. 9 10 Issue Three B: Whether the ALJ erred in finding that Plaintiff does not suffer from a severe mental impairment. 11 12 Issue Three C: Whether the ALJ’s RFC determination is supported by substantial evidence. 13 III. 14 DISCUSSION. 15 A. Issue One: Alleged Conflict between the DOT and the VE’s Testimony. 16 1. 17 At the hearing, the ALJ asked the VE if a hypothetical person with all the Relevant Administrative Proceedings. 18 restrictions in Plaintiff’s RFC – except the restriction against turning his head from 19 side to side – could do Plaintiff’s past relevant jobs. AR 94. The VE testified that 20 the hypothetical person could work as a waiter, bartender, theater arts teacher, or 21 teacher’s aide. Id. The VE also explained that the hypothetical person could work 22 as a banquet captain as that job is described in the DOT (i.e., light work) but not as 23 Plaintiff performed it (i.e., medium work). AR 93-94. 24 The ALJ next asked the VE to consider the same hypothetical person, but 25 add a restriction that he could not turn his head side to side. AR 97. The VE 26 testified that the additional restriction did not change her opinions, saying, “I don’t 27 know why you could not turn your body.” Id. The VE subsequently affirmed that 28 her testimony was consistent with the DOT and “supplemented by continuing 4 1 2 3 education, other vocational resources, and experience.” AR 98. The ALJ relied on the VE’s testimony to find that Plaintiff could perform his past relevant work. AR 48. 4 2. 5 An ALJ may not rely on a VE’s testimony regarding the requirements of a Analysis. 6 job without first inquiring whether the testimony conflicts with the DOT. 7 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p). If 8 there is a conflict between the VE’s testimony and the DOT, an ALJ must 9 determine whether there is a reasonable explanation for the deviation. Id. 10 Reasonable explanations for deviating from the DOT include that the DOT “does 11 not provide information about all occupations, information about a particular job 12 not listed in the [DOT] may be available elsewhere, and the general descriptions in 13 the [DOT] may not apply to specific situations.” Id. at 1153, n.17 (citing SSR 00- 14 4p). “The procedural requirements of SSR 00-4p ensure that the record is clear as 15 to why an ALJ relied on a vocational expert’s testimony ….” Id. at 1153. 16 The Ninth Circuit has not addressed in a published decision the question of 17 whether an apparent conflict with the DOT arises when the DOT is silent as to a 18 particular mental or physical requirement. Unpublished decisions go each way. 19 Compare Dewey v. Colvin, 650 Fed. Appx. 512, 514 (9th Cir. 2016) (finding no 20 conflict between sit/stand option and DOT because “the DOT is silent on whether 21 the jobs in question allow for a sit/stand option”), with Buckner-Larkin v. Astrue, 22 450 Fed. Appx. 626, 628-29 (9th Cir. 2011) (finding “conflict” between at-will 23 sit/stand option and DOT was adequately addressed by VE based on VE’s own 24 research and experience). This Court declines to find that a conflict always exists 25 when the DOT is silent and instead adopts a case-by-case approach. See Wester v. 26 Colvin, 2015 WL 4608139, *5 (C.D. Cal. July 31, 2015) (“[W]hen a VE relies on a 27 functional limitation about which the DOT is silent or unclear, a conflict may exist 28 depending upon the circumstances of the case.”). For example, in Gutierrez v. 5 1 Colvin, 844 F.3d 804, 807 (9th Cir. 2016), the Ninth Circuit found no “obvious or 2 apparent” conflict that triggered the ALJ’s duty to inquire further where the VE 3 opined that a claimant precluded from overhead reaching with her right arm could 4 work as a cashier, where the DOT description required frequent reaching but did 5 not specify in what direction. The Ninth Circuit reasoned that it was “unlikely and 6 unforeseeable” that a cashier would need to reach overhead, and even more rare for 7 one to need to reach overhead with both arms. Id. at 808-09 and 809 n.2. In 8 contrast, the Ninth Circuit found a conflict in Lamear v. Berryhill, 865 F.3d 1201, 9 1205 (9th Cir. 2017), because the court could not “say that, based on common 10 experience, it is likely and foreseeable that an office helper, mail clerk, or parking 11 lot cashier with limitations on his ability to ‘handle, finger and feel with the left 12 hand’ could perform his duties.” 13 Here, the VE opined that Plaintiff could perform teaching jobs (i.e., 14 teacher’s aide and theater arts teacher) and food service jobs (i.e., bartender, 15 waiter, and banquet captain) despite his inability to turn his head side to side. AR 16 97. As Plaintiff points out, the likely and foreseeable way these jobs are performed 17 includes the need to look at many people, and thus to look in different directions. 18 JS at 5-6. This potential inconsistency triggered the ALJ’s duty to inquire under 19 SSR 00-4p. 20 The ALJ here had no need to inquire because the VE spontaneously 21 explained her testimony. The VE explained that someone performing those jobs 22 could meet the need to look in different directions by turning his body rather than 23 turning his neck. AR 97. 24 Plaintiff argues that this is not a “reasonable explanation” as required by 25 SSR 00-4p. Plaintiff claims that the VE’s testimony that a worker who must look 26 in different directions can do so by turning his body is nothing more than “a 27 personalized hunch.” JS at 9. 28 “A VE’s recognized expertise provides the necessary foundation for his or 6 1 her testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 2 Claimants, especially when represented by counsel, cannot argue that a VE’s 3 testimony lacks foundation when they fail to question the VE at the hearing about 4 the challenged testimony. Lang v. Comm’r of SSA, 2014 WL 1383247, at *5 5 (E.D. Cal. Apr. 8, 2014) (“Plaintiff chose not to inquire as to the VE’s 6 methodology at the hearing and now attempts to prove that the numbers were made 7 up due to the absence of evidence that the numbers were not made up – a void in 8 the record that Plaintiff chose not to fill.”) 9 A VE’s testimony is substantial evidence if “a reasonable mind might accept 10 [it] as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 11 (1971). A reasonable mind might accept that a person who cannot turn his head 12 side to side could nevertheless perform Plaintiff’s past relevant work by turning his 13 body when he needs to look in different directions. Indeed, Plaintiff testified that 14 he can still drive, an activity that constantly requires looking in different directions, 15 despite being unable to turn his head side to side. AR 88. The ALJ did not err in 16 relying on the VE’s adequately explained testimony. 17 B. Issue Two: Plaintiff’s Pain Testimony. 18 1. 19 An ALJ’s assessment of symptom severity and claimant credibility is 20 entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); 21 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not ‘required 22 to believe every allegation of disabling pain, or else disability benefits would be 23 available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 24 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). 25 Rules for Evaluating Claimants’ Subjective Testimony. If the ALJ finds testimony as to the severity of a claimant’s pain and 26 impairments is unreliable, “the ALJ must make a credibility determination with 27 findings sufficiently specific to permit the court to conclude that the ALJ did not 28 arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 7 1 (9th Cir. 2002). In doing so, the ALJ may consider testimony from physicians 2 “concerning the nature, severity, and effect of the symptoms of which [the 3 claimant] complains.” Id. at 959 (citation omitted). If the ALJ’s credibility 4 finding is supported by substantial evidence in the record, courts may not engage 5 in second-guessing. Id. 6 In evaluating a claimant’s subjective symptom testimony, the ALJ engages 7 in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 8 2007). “First, the ALJ must determine whether the claimant has presented 9 objective medical evidence of an underlying impairment ‘which could reasonably 10 be expected to produce the pain or other symptoms alleged.’” Id. at 1036 (citation 11 omitted). If so, the ALJ may not reject a claimant’s testimony “simply because 12 there is no showing that the impairment can reasonably produce the degree of 13 symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 14 Second, if the claimant meets the first test, the ALJ may discredit the 15 claimant’s subjective symptom testimony only if he makes specific findings that 16 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 17 Absent a finding or affirmative evidence of malingering, the ALJ must provide 18 “clear and convincing” reasons for rejecting the claimant’s testimony. Lester v. 19 Chater, 81 F.3d 821, 834 (9th Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163 20 & n.9 (9th Cir. 2014). The ALJ must consider a claimant’s work record, 21 observations of medical providers and third parties with knowledge of claimant’s 22 limitations, aggravating factors, functional restrictions caused by symptoms, 23 effects of medication, and the claimant’s daily activities. Smolen, 80 F.3d at 1283- 24 84 & n.8. “Although lack of medical evidence cannot form the sole basis for 25 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 26 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 27 28 There are two ways for an ALJ to “use daily activities to form the basis of an adverse credibility determination: if the claimant’s activity contradicts his 8 1 testimony or if the claimant’s activity meets the threshold for transferable work 2 skills.” Phillips v. Colvin, 61 F. Supp. 3d 925, 944 (N.D. Cal. 2014). The first 3 way is satisfied if a claimant gives contradictory testimony about his activities or if 4 there are “contradictions between [the claimant’s] reported activities and his 5 asserted limitations.” Morgan v. Comm’r of the SSA, 169 F.3d 595, 600 (9th Cir. 6 1999). The second way is satisfied “[i]f a claimant is able to spend a substantial 7 part of his day engaged in pursuits involving the performance of physical functions 8 that are transferable to a work setting ….” Id. 9 10 2. The ALJ’s Evaluation of Plaintiff’s Testimony. Plaintiff completed an Adult Function Report. AR 305-13. The ALJ gave 11 this report’s description of Plaintiff’s activities “significant probative weight” 12 because it was consistent with other evidence concerning Plaintiff’s activities (i.e., 13 a third-party report completed by his friend, Patricia Lawson, and Plaintiff’s 14 medical progress notes). AR 47. 15 At the hearing, Plaintiff testified that he could not lift more than ten pounds 16 because his doctor had restricted him from doing so. AR 71. He also testified that 17 if he uses his hands to write or type for more than fifteen or twenty minutes, then 18 he experiences “numbness and tingling” and must stop. AR 71-72. He estimated 19 that he could continuously stand for one hour, sit for two hours, and walk for one 20 and a half hours. AR 74-76. After a one-hour therapy walk in the morning, he can 21 do additional walking later to run errands. AR 77. Even if he mixes up standing 22 and walking, he cannot sustain those activities for five or six hours per day. AR 23 75. He lies down between thirty and sixty minutes each day. AR 82. 24 Regarding his mental impairments, Plaintiff reported that his anxiety 25 prevents him from going to crowded places alone. AR 308. On a checklist with 26 nineteen functional abilities potentially affected by his condition, Plaintiff checked 27 all nineteen, including hearing, seeing, memory, concentration, understanding, 28 following instructions, and getting along with others. AR 310. 9 1 The ALJ found that Plaintiff’s allegations of physical and mental disability 2 were “undermined by the reports in the record regarding [his] extensive activities.” 3 AR 47. The ALJ devoted several paragraphs to listing Plaintiff’s activities: taking 4 care of his personal hygiene, using the computer, performing volunteer work for 5 the arts community, teaching voice, writing for a quarterly magazine on arts and 6 culture, visiting friends, cooking basic meals, washing dishes, doing laundry, 7 performing light cleaning, taking walks, shopping, going to restaurants, playing 8 board games, and using public transportation. Id. 9 10 3. Analysis. Plaintiff contends that the ALJ’s credibility analysis was flawed because 11 (1) the ALJ did not point to specific portions of Plaintiff’s testimony that he 12 disbelieved, (2) the ALJ used medical improvement to discredit Plaintiff without 13 considering whether Plaintiff was eligible for a closed period of benefits from the 14 time prior to his surgical interventions, and (3) Plaintiff’s activities do not show “a 15 capability to perform work-related activities.” JS at 10. 16 Concerning the first point, the ALJ did point to specific portions of 17 Plaintiff’s testimony that the disbelieved. The ALJ disbelieved Plaintiff’s assertion 18 that he could not lift more than 10 pounds or walk/stand for at least 6 hours in an 19 8-hour work day, because the ALJ determined that Plaintiff could perform light 20 work. AR 41. Light work requires lifting up to twenty pounds and “standing or 21 walking, off and on, for a total of approximately six hours of an eight-hour 22 workday.” 1983 SSR LEXIS 30, *14. The ALJ also disbelieved Plaintiff’s 23 assertion that his pain and anxiety have impaired his daily activities, social 24 functioning, and concentration, because the ALJ found that he has “no limitations” 25 in these areas. AR 39-40. 26 Concerning the second point, Plaintiff fails to develop this argument; it is 27 mentioned in one sentence with no citations to any legal authority or evidence in 28 the record. JS at 10. The ALJ did find that Plaintiff had “some temporary periods 10 1 of disability around the time of his lumbar and cervical surgeries, but his disability 2 did not last 12 or more continuous months. He recovered well postoperatively and 3 was at least able to return to light work.” AR 44. The ALJ based this finding on 4 evidence of Plaintiff’s “active lifestyle following his surgery” and medical records 5 indicating “his pain was significantly improved postoperatively.” Id. Plaintiff has 6 failed to show the ALJ erred. 7 Concerning the third point, the ALJ found that while Plaintiff’s writing for a 8 magazine and volunteering were not substantial gainful employment, they were 9 “reflective of an ability to work.” AR 39. As the Commissioner points out, many 10 of Plaintiff’s reported activities are work-related activities, such as teaching, 11 studying, volunteering, using a computer, and writing articles. JS at 14. Other of 12 Plaintiff’s reported activities, such as cooking, cleaning, running errands, and 13 visiting with friends, involve some of the same functional abilities that one would 14 use to perform Plaintiff’s past jobs. 15 There is substantial evidence in the record to support the ALJ’s conclusion 16 that these activities constituted a “substantial part” of Plaintiff’s day. In his Adult 17 Function Report, Plaintiff explained that his daily activities include his one-hour 18 therapy walk, preparing “good, fresh food” for breakfast, lunch, and dinner, and 19 spending about a half hour to wash dishes. AR 306-07. He spends “a lot of time 20 studying” workers’ compensation law and dealing with insurance and benefits 21 issues, including firing his workers’ compensation attorney. AR 306, 310, 1023. 22 He shops as needed and visits with friends 3-4 times per week, which includes 23 going to their homes or restaurants. AR 309. Plaintiff told Dr. Brian Grossman 24 that he “tries to stay busy and occupied during the day.” AR 1430. To that end, in 25 2016 he volunteered for a theater company teaching actors, assisting at rehearsals 26 that “lasted four hours a day for six weeks.” Id. While some of Plaintiff’s activities 27 are usually done seated (e.g., using a computer and writing articles), many others 28 would require walking or standing (e.g., therapy walking, cooking, washing dishes, 11 1 running errands, and teaching acting). 2 Plaintiff’s claimed mental impairments are also inconsistent with his 3 activities. Assisting at four-hour rehearsals demonstrates the ability to get along 4 with others and stay on task. Taking a one-hour therapy walk every morning 5 demonstrates the ability to maintain a schedule. Using a computer and writing 6 articles are inconsistent with severe cognitive impairment. 7 Given the above-summarized evidence, the ALJ did not err in concluding 8 that Plaintiff’s activities are inconsistent with his reported limitations. 9 C. Issue Three A: New Evidence. 10 1. 11 After the ALJ’s August 16, 2016 decision, Plaintiff submitted Barrington Factual Background. 12 Psychiatric Center psychologist Dr. Godwin’s August 27, 2016 re-evaluation to the 13 Appeals Council, which made it part of the record. AR 5 (making re-evaluation 14 Ex. 24F [AR 1426-36]). When the Appeals Council accepts new evidence, the 15 district court must consider it when evaluating whether the ALJ’s findings are 16 supported by substantial evidence. Brewes v. Comm’r of SSA, 682 F.3d 1157, 17 1160 (9th Cir. 2012). 18 Plaintiff submitted three other records that the Appeals Council declined to 19 accept as new evidence: (1) October 2016 authorization from the Southern 20 California Orthopedic Institute “for a consultation with hand specialist Dr. David 21 Auerbach” (see Dkt. 17-1 at 1-2); (2) October 2016 authorization for four 22 psychotherapy sessions (id. at 3-4); and (3) supporting report from psychiatrist Dr. 23 Soliman considering whether “individual psychotherapy once a week for 10 24 weeks” is “medically necessary” and authorizing only four sessions (id. at 5-8). JS 25 at 15. 26 Regarding the hand-related orthopedic authorization, the Appeals Council 27 explained that it was not accepted because it relates to “a later time.” AR 2. The 28 Appeals Council did not explain its rejection of the two other documents. Plaintiff 12 1 argues that the case should be remanded so that the ALJ can consider these three 2 documents as new evidence. JS at 16, 20. 3 2. 4 Remand to permit an ALJ to consider new evidence is appropriate if (1) the Rules Governing Remand to Consider New Evidence. 5 new evidence is “material” and (2) there is “good cause” for the failure to 6 incorporate such evidence in the record in a prior proceeding. Burton v. Heckler, 7 724 F.2d 1415, 1417 (9th Cir. 1984) (citing 42 U.S.C. § 405(g)). “To demonstrate 8 good cause, the claimant must demonstrate that the new evidence was unavailable 9 earlier.” Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001); see also Key v. 10 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new information surfaces after 11 the Secretary’s final decision and the claimant could not have obtained that 12 evidence at the time of the administrative proceeding, the good cause requirement 13 is satisfied.”). 14 To be material, the new evidence must bear “directly and substantially on 15 the matter in dispute.” Mayes, 276 F.3d at 462 (holding no remand required where 16 claimant failed to demonstrate that “the [back] condition diagnosed in November 17 1997 [and discussed in the new evidence] even existed when the ALJ hearing was 18 held in May 1997”). This means it must be probative of the claimant’s condition at 19 or before the time of the disability hearing. Sanchez v. Secretary of Health and 20 Human Services, 812 F.2d 509, 511 (9th Cir. 1988) (citing 20 C.F.R. § 404.970(b)) 21 (holding evidence of “mental deterioration after the hearing … would be material 22 to a new application, but not probative of his condition at the hearing”). Finally, 23 materiality also requires claimants to “demonstrate that there is a reasonable 24 possibility that the new evidence would have changed the outcome of the 25 administrative hearing.” Mayes, 276 F.3d at 463. 26 Good cause appears to exist because all the disputed records were written 27 after the ALJ’s unfavorable opinion, and Plaintiff could not have obtained them 28 earlier through the exercise of reasonable diligence. The parties, however, dispute 13 1 2 materiality. 3. 3 4 Materiality Analysis: Hand Specialist Consultation Authorization. The form document contains only one original sentence: “This is 5 authorization for a consultation with hand specialist Dr. David Auerbach for the 6 left long finger.” Dkt. 17-1 at 2. Plaintiff argues that this document is material, 7 because the ALJ should have assessed more limitations “with respect to his ability 8 to reach, handle, [and] finger ….” JS at 17. The ALJ found that Plaintiff was 9 limited to “frequent overhead reaching, handling, fingering, feeling, pushing, and 10 pulling ….” AR 41. In the context of social security disability benefits, “frequent” 11 means up to two thirds of the time. SSR 83-10, 1983 WL 31251, at *6. 12 “Medical opinions are statements from physicians and psychologists or other 13 acceptable medical sources that reflect judgments about the nature and severity of 14 [a claimant’s] impairment(s), including [a claimant’s] symptoms, diagnosis and 15 prognosis, what [a claimant] can still do despite impairment(s), and [a claimant’s] 16 physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). This insurance 17 authorization does not contain any medical opinion evidence. Moreover, this 18 document is not necessary to prove that Plaintiff suffers from a severe hand 19 impairment, because the ALJ already found that Plaintiff’s trigger finger is a 20 severe impairment. AR 39. In the Joint Stipulation, Plaintiff does not discuss the 21 content of this document or any medical opinions by Dr. Auerbach. Plaintiff failed 22 to carry his burden of showing that the document is material. 23 24 25 4. Materiality Analysis: Psychotherapy Authorization and Dr. Soliman’s Report. The authorization letter does nothing more than communicate that insurer 26 Coventry Worker’s Compensation Services authorized four psychotherapy sessions 27 for Plaintiff but denied his request for an additional six sessions. Dkt. 17-1 at 3-4. 28 The letter does not contain any medical opinion evidence and is not material. 14 1 Dr. Soliman’s report summarized Dr. Godwin’s 2015 initial evaluation and 2 2016 re-evaluation, both of which are already evidence of record. Dkt. 17-1 at 5. 3 Dr. Soliman noted that “CA MTUS [chronic pain treatment] guidelines 4 recommend the use of the requested psychotherapy for 4 initial sessions to 5 facilitate treatment and speed recovery.” Id. at 7. Based on those guidelines, he 6 approved “individual psychotherapy 2 times a week for 2 weeks.” Id. at 8. 7 Plaintiff argues that the Appeals Council should have accepted this report as 8 evidence, because “Dr. Soliman reviewed records from Dr. Godwin covering the 9 time frame from 8/9/16 through 8/27/16, which correlates with the time that the 10 ALJ issued the unfavorable hearing decision.” JS at 16. 11 Plaintiff has not provided any notes from whatever psychotherapy sessions 12 he may have attended. Dr. Soliman’s report does not contain any new medical 13 opinion evidence. Dr. Soliman’s decision to authorize four psychotherapy sessions 14 was based on the cited worker’s compensation insurance guidelines for chronic 15 pain management and not on his exercise of independent medical judgment. 16 Again, Plaintiff has not carried his burden of showing this report is material. 17 For these reasons, no remand is required to permit the ALJ to consider 18 Plaintiff’s proposed three new exhibits. 19 D. Issue Three B: The ALJ’s Determination that Plaintiff’s Mental 20 Impairments are Non-Severe. 21 1. 22 Once a claimant has shown that he suffers from a medically Rules Governing Step Two Severity Determinations. 23 determinable impairment, he next has the burden of proving that these 24 impairments are “severe.” Edlund v. Massanari, 253 F.3d 1152, 1160-61 (9th 25 Cir. 2001). An impairment is “severe” if it significantly limits a claimant’s 26 physical or mental ability to perform basic work activities. 20 C.F.R. 27 § 416.920(c). Basic work activities are the abilities and aptitudes necessary to 28 do most jobs. 20 C.F.R. § 416.921(b). Examples of physical work activities 15 1 include walking, standing, sitting, reaching and carrying. Id. A severe 2 impairment is one that has “more than a minimal effect on the individual’s 3 ability to do work.” Social Security Ruling (“SSR”) 96-2p. Conversely, an 4 impairment is “non-severe” if it does not significantly limit a claimant’s ability 5 to perform basic work activities. 20 C.F.R. § 416.921(a). If a claimant does 6 not have a medically determinable impairment that is “severe” over a period of 7 at least 12 consecutive months, then the claimant is not disabled. 20 C.F.R. 8 416.909. 9 The ALJ must consider the combined effect of all the claimant’s 10 impairments on her ability to function, without regard to whether each alone 11 was sufficiently severe. 42 U.S.C. § 423(d)(2)(B); SSR 86-8, 85-28. The ALJ 12 must also consider the claimant’s credible subjective symptoms, such as pain 13 or fatigue, in determining severity. SSR 88-13; 20 C.F.R. § 416.920(c). “The 14 severity regulation increases the efficiency and reliability of the evaluation 15 process by identifying at an early stage those claimants whose medical 16 impairments are so slight that it is unlikely they would be found to be disabled 17 even if their age, education, and experience were taken into account.” Bowen 18 v. Yuckert, 482 U.S. 137, 153 (1987). 19 2. 20 The ALJ found that Plaintiff’s depressive disorder “does not cause more The ALJ’s Step Two Findings. 21 than minimal limitation on [his] ability to perform basic mental work activities.” 22 AR 39. To support this finding, the ALJ noted that Plaintiff had never received 23 treatment from a mental health care specialist (AR 43) and cited an October 2015 24 psychological evaluation conducted by Dr. Godwin. AR 39, citing AR 1066-78. 25 This was the only psychological evaluation of Plaintiff in the record prior to the 26 ALJ’s decision. 27 28 Dr. Godwin noted that Plaintiff was experiencing anxiety and depression as he awaited authorization for neck surgery. AR 1067. Dr. Godwin described 16 1 Plaintiff’s affect as “neither depressed nor anxious.” Id. Plaintiff told Dr. Godwin 2 that he takes Xanax 0.25 mg “a couple of times a week,” which was prescribed by 3 his surgeon, Dr. Grossman.4 AR 1068. Dr. Godwin diagnosed Plaintiff as 4 suffering from an adjustment disorder with anxiety. AR 1074. Dr. Godwin opined 5 that his anxiety was related to uncertainty about the approval of his neck surgery, 6 and that Plaintiff contacted him a few days after the evaluation to report that he had 7 received authorization for the surgery and that “this had put a lot of his anxiety to 8 rest.” Id. Dr. Godwin noted that Plaintiff’s psychological symptoms had not 9 rendered him disabled because “he continues to instruct children in the arts and 10 also does some occasional writing for magazine.” AR 1075. Dr. Godwin did not 11 apportion any percentage of Plaintiff’s disability to his psychological symptoms. 12 AR 1076. Dr. Godwin later confirmed that when he evaluated Plaintiff in 2015, 13 Plaintiff was not suffering “from any diagnosable mental condition.” AR 1427. 14 While Dr. Godwin is the only mental health care specialist who evaluated 15 Plaintiff, the record does contain other treating records discussing Plaintiff’s 16 mental health, summarized in chronological order below. 17 18 19 20 Plaintiff’s physical therapist consistently noted “Mental Status/Cognitive Function appears impaired? No.” AR 516, 519, 528, 546, 557. In March, April, and May of 2014, treating doctor Hideto Saito found Plaintiff psychiatrically “normal.” AR 647, 650, 656. 21 22 23 24 25 26 27 28 4 In December 2014, Plaintiff’s treating surgeon, Dr. Grossman, referred Plaintiff for a psychological consult because “the patient appears to have developed depression and anxiety due to his ongoing pain and stress related to his injury.” AR 909. In February 2015, Dr. Grossman prescribed Plaintiff Xanax “for anxiety and severe spasms.” AR 931. In June 2016, Dr. Grossman’s notes say, “Xanax prescribed but not authorized” by insurance. AR 1284. In July 2016, Dr. Grossman noted “authorization was provided for Xanax refill.” AR 1278. In August 2016, however, Plaintiff told Dr. Godwin that he could not get a Xanax refill when it ran out. AR 1429. 17 1 In June 2014, Plaintiff visited the emergency room complaining of leg pain. 2 AR 600-01. The E.R. noted a “generalized anxiety disorder” and instructed 3 Plaintiff to follow up with his primary care physician. AR 604. Plaintiff drove 4 himself home. AR 603. In July 2014, Dr. Saito noted that Plaintiff presented as 5 anxious and fearful. AR 659. Dr. Saito prescribed buspirone and Ambien. Id. By 6 March 2015, Dr. Saito’s clinic noted that Plaintiff was “not taking” these 7 medications. AR 678. 8 9 10 In March 2015, the workers’ compensation claims adjustor denied a requested referral for a psychiatric consultation. AR 1018. In November 2015, an agency psychologist reviewed Plaintiff’s records and 11 found “insufficient evidence to substantiate the existence of a [mental] disorder.” 12 AR 112. 13 Based on this psychological evidence, the ALJ concluded that Plaintiff had 14 no limitations in the areas of daily living, social functioning, or maintaining 15 concentration, persistence, or pace. AR 39-40. The ALJ therefore found 16 Plaintiff’s anxiety and depression non-severe. Id. 17 3. 18 Even considering Dr. Godwin’s 2016 re-evaluation, the ALJ’s determination Effect of New Evidence. 19 that Plaintiff does not suffer from a severe mental impairment is still supported by 20 substantial evidence. 21 In August 2016, Plaintiff told Dr. Godwin that he was anxious and frustrated 22 because he was awaiting authorization for a consultation with a hand specialist 23 regarding his trigger finger. AR 1428. He was worried about his health, his 24 finances, and his future. AR 1429. Plaintiff had run out of his Xanax prescription 25 from early 2016 and “cannot get a refill.” Id. He reported that Xanax effectively 26 diminished his anxiety but caused him to become “too sleepy.” Id. 27 28 Dr. Godwin observed no “obvious signs of depression” and found Plaintiff “more anxious than depressed.” AR 1427. Dr. Goodwin opined that Plaintiff 18 1 could function “in the average range intellectually” with no obvious memory 2 deficits. Id. Plaintiff displayed sound judgment and “no difficulty making routine 3 decisions.” AR 1428. Dr. Godwin noted that Plaintiff tried to combat his anxiety 4 by staying busy. AR 1430. “Just recently [Plaintiff] had been volunteering at the 5 Peach Tree Theatre Company where he taught actors for a Shakespeare play. 6 Rehearsals lasted 4 hours a day for 6 weeks, until the production was put on a 7 couple of weeks ago.” Id. 8 9 While Dr. Godwin affirmed his 2015 diagnosis of adjustment disorder with anxiety, he opined that Plaintiff’s adjustment disorder had “worsened” such that he 10 would “now benefit from psychotherapy.” AR 1432. Dr. Godwin opined that 11 Plaintiff’s psychological symptoms were still not sufficiently intense to render him 12 disabled on a psychological basis alone. AR 1433. Dr. Godwin declined to 13 apportion any portion of Plaintiff’s disability to his psychological condition 14 because Plaintiff was not yet at maximum medical improvement. AR 1434. 15 This report has no tendency to show that Plaintiff’s adjustment disorder 16 more than minimally affected his ability to work. As Dr. Godwin noted, despite 17 his psychological symptoms, Plaintiff could volunteer many hours with a theater 18 company, displayed no cognitive deficits, and reported healthy social relationships. 19 Per Plaintiff, if “the ALJ would have incorporated mental limitations into the 20 [RFC], it is likely that [Plaintiff] would have had concentration deficits or a 21 limitation to simple, repetitive tasks, that would have eliminated his past relevant 22 work, or the skilled job identified by the VE.” JS at 16. Given Plaintiff’s reported 23 activities (e.g., writing, acting, teaching, volunteering, and managing his own 24 affairs), there is no evidence that Plaintiff suffers from concentration deficits and 25 can only do simple, repetitive jobs. 26 E. 27 28 Issue Three C: The ALJ’s RFC Determination. Plaintiff asserts the ALJ erred in evaluating the medical evidence and should have included the following limitations in Plaintiff’s RFC: 19 1 • A limitation against walking on uneven terrain (JS at 15); 2 • Three limitations imposed by Dr. Grossman: no (1) “lifting, pushing, or 3 pulling greater than 30 pounds,” (2) “standing longer than 30 minutes at a time,” 4 and (3) “repetitive stooping, squatting, kneeling, or climbing” (id.); 5 • A limitation against all overhead reaching (id. at 17); and 6 • A limitation to occasional handling and fingering, rather than frequent 7 (id.). 8 1. 9 Dr. Afra opined that Plaintiff should be limited to “occasionally” climbing 10 ladders and walking on uneven terrain. AR 1063. In the social security context, 11 “occasional” means up to one-third of the time. SSR 83-10, 1983 WL 31251, at 12 *5. The ALJ precluded Plaintiff from climbing ladders, but was silent as to 13 Plaintiff’s ability to walk on uneven terrain. AR 41. 14 Uneven Terrain. Plaintiff argues that while the ALJ gave the opinion of consultative examiner 15 Dr. Afra great weight, he failed either to (1) incorporate Dr. Afra’s limitation 16 against walking on uneven terrain into Plaintiff’s RFC or (2) give a specific, 17 legitimate reason for rejecting it. JS at 15. 18 In fact, the ALJ noted that Plaintiff “can ambulate well.” AR 41. The ALJ 19 further noted that Plaintiff reported he “walk[ed] on hiking trails for an hour at a 20 time.” AR 45. This would be sufficient reason for the ALJ not to include in 21 Plaintiff’s RFC a limitation on walking on uneven terrain. 22 Moreover, any error would be harmless. “A decision of the ALJ will not be 23 reversed for errors that are harmless.” Burch, 400 F.3d at 679. Generally, an error 24 is harmless if it either “occurred during a procedure or step the ALJ was not 25 required to perform,” or if it “was inconsequential to the ultimate nondisability 26 determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 1055 (9th Cir. 2006). 27 Plaintiff does not assert that any of his past jobs required more than “occasionally” 28 walking on uneven terrain. Thus, even if the ALJ had included that limitation in 20 1 the RFC, there is no evidence it would have changed the ALJ’s determination that 2 Plaintiff was not disabled. 3 4 5 2. Dr. Grossman’s Limitations. a. Summary of Dr. Grossman’s Opinions. In November 2013, Plaintiff’s treating surgeon, Dr. Grossman, opined that 6 Plaintiff could return to work, so long as he did not lift more than 10 pounds or 7 engage in “repetitive bending, stooping, squatting, kneeling or climbing.” AR 591. 8 The ALJ cited a progress report by Dr. Grossman, dated December 30, 2013. 9 AR 45, citing AR 592-95. In that report, Dr. Grossman explained that Plaintiff 10 continued to recover from his August 2013 spinal surgery but was still awaiting 11 authorization for a cervical MRI to address his neck pain and a consultation with a 12 specialist about his trigger finger. Id. Dr. Grossman opined that it was “unlikely” 13 Plaintiff would ever be able to perform work that requires “heavy lifting or 14 repetitive bending.” AR 594. He noted that Plaintiff’s condition was not yet 15 permanent and stationary, and that in the meantime, Plaintiff was “precluded from 16 lifting, pushing or pulling greater than 10 pounds, standing longer than 30 minutes 17 at a time, repetitive bending, stooping, squatting, kneeling or climbing.” AR 595. 18 By March 2014, Dr. Grossman concluded that Plaintiff’s lumbar spine had 19 reached maximum medical improvement. AR 45, citing AR 1332 (only 1 page of 20 report), AR 844-46 (entire report). In that report, Dr. Grossman opined that 21 Plaintiff could lift and carry up to ten pounds. AR 844. He opined Plaintiff could 22 “stand or walk” less than six hours and sit less than eight hours. AR 845. He 23 limited Plaintiff to pushing or pulling no more than ten pounds. Id. He limited 24 Plaintiff to “occasionally” climbing, balancing, stooping, kneeling, crouching, 25 crawling, and twisting. Id. He opined Plaintiff could engage “frequently” in 26 reaching, handling, and fingering. Id. 27 28 In July 2014, Dr. Grossman opined that Plaintiff’s work capacity restrictions were “unchanged from that described in [his] March 12, 2014 report.” AR 852. 21 1 In December 2014, Dr. Grossman noted that Plaintiff had “longstanding” 2 restrictions due to his lumbar spine (apparently referring to those noted in March 3 2014). AR 1325. Dr. Grossman then added new restrictions due to Plaintiff’s 4 cervical spine; he opined that Plaintiff was precluded from “strong gripping or 5 grasping, lifting or carrying bilaterally greater than 10 pounds, forceful pushing or 6 pulling, work at or above shoulder level as well as repetitive or extreme neck 7 motions.” AR 1325. Dr. Grossman repeated these restrictions in November 2015. 8 AR 1303. 9 Dr. Grossman performed Plaintiff’s cervical spinal fusion surgery in January 10 2016. AR 1130. In his last July 2016 progress report, Dr. Grossman opined that 11 Plaintiff was still disabled and not yet permanent and stationary. AR 1276-77. 12 Plaintiff cites AR 1249 as the source of Dr. Grossman’s opinion that 13 Plaintiff cannot push or pull greater than 30 pounds or stand for longer than 30 14 minutes. JS at 15. That record, however, is a page from Dr. Scharf’s report 15 summarizing prior treating records from Dr. Grossman. AR 1231, 1249. Dr. 16 Scharf cited a January 21, 2014 progress report saying that Dr. Grossman last saw 17 Plaintiff on December 30, 2013. AR 1249. Plaintiff has not provided a record cite 18 for Dr. Grossman’s actual progress report(s). The Court assumes that Dr. Scharf 19 was referring to the December 30, 2013 progress note summarized above (AR 592- 20 95). 21 The ALJ gave Dr. Grossman’s reports “great probative weight because he 22 was the claimant’s treating surgeon and his conclusions were medically 23 supported.” AR 44. The ALJ found, however, that “[t]o the extent Dr. Grossman 24 assessed additional functional limitations than found [by the ALJ], those 25 limitations were rejected such as an inability to lift more than 10 pounds, because 26 no other physician imposed such severe restrictions and the clinical findings did 27 not support the limitation.” Id. 28 /// 22 1 2 b. Standing. While Dr. Grossman’s December 2013 report restricted Plaintiff from 3 standing longer than thirty minutes as he was recovering from August 2013 4 surgery, Dr. Grossman dropped that restriction when Plaintiff’s condition became 5 stable in March 2014. Compare AR 595 and AR 845. Plaintiff fails to cite any 6 medical evidence that an impairment lasting twelve months or more precluded 7 Plaintiff from standing longer than thirty minutes during the period of claimed 8 disability. Plaintiff, therefore, fails to show the ALJ erred by not including this 9 restriction in Plaintiff’s RFC. 10 11 c. Lifting. The ALJ rejected Dr. Grossman’s March 2014 opinion that Plaintiff could 12 lift no more than ten pounds because “no other physician imposed such severe 13 restrictions and the clinical findings did not support the limitation.” AR 44. The 14 opinions of those other physicians are as follows: 15 Chiropractor Dr. Clemens (who had established a treating relationship with 16 Plaintiff in 1999 after a non-industrial accident [AR 474]) opined in June 2012 that 17 he expected Plaintiff to be able to return to work in September 2012. AR 475-76. 18 19 20 Dr. Campwala first saw Plaintiff about two weeks after his accident and opined in August 2012 that Plaintiff could lift up to thirty pounds. AR 434, 708. After his lumbar surgery in August 2013, Plaintiff attended physical therapy. 21 His physical therapist, Anna Kotula, discharged Plaintiff on November 18, 2013, 22 because he had “achieved all of his PT goals” except jogging. AR 508. 23 In July 2014, orthopedic surgeon Dr. Fields evaluated Plaintiff as part of 24 Plaintiff’s workers’ compensation claim. AR 1025. At that time, Plaintiff was 25 taking Naprosyn/Aleve for his pain, but Dr. Fields noted no prescriptions. AR 26 1029. Dr. Fields opined that Plaintiff’s lumbar spine had reached maximum 27 medical improvement, but there were insufficient imaging studies to evaluate 28 Plaintiff’s neck pain. AR 1041-42. Dr. Fields did a supplemental report in 23 1 2 September 2014, but he did not adjust his opinions. AR 1156. In September 2015, Dr. Scharf also examined Plaintiff as part of Plaintiff’s 3 workers’ compensation claim. AR 1085. Dr. Scharf found that the injuries to 4 Plaintiff’s neck were related to his industrial accident. AR 1125. 5 6 7 In October 2015, consultative examiner Dr. Afra conducted a physical exam. AR 1057-63. She opined that Plaintiff was capable of light work. AR 1062. Later in October 2015, agency physician Dr. Ligon reviewed Plaintiff’s 8 medical records and concurred that Plaintiff could do light work. AR 113-14. In 9 December 2015, agency physician Dr. Linder also found Plaintiff could perform 10 11 the exertional demands of light work. AR 151-52. Thus, at least four other doctors (Drs. Campwala, Afra, Ligon, and Linder) 12 found that Plaintiff could lift weights consistent with light work. The ALJ, 13 therefore, did not err in rejecting Dr. Grossman’s contrary opinion as inconsistent 14 with the majority of the medical evidence. 15 16 d. Pushing and Pulling. The ALJ’s limited Plaintiff to “light” work with “frequent” pushing and 17 pulling. AR 41. The ALJ did not specify a weight limit for Plaintiff’s pushing and 18 pulling. The Court interprets the ALJ’s silence not as an assertion that Plaintiff can 19 push or pull any weight, however heavy, but instead as applying the same weight 20 limits for frequent lifting and carrying in the definition of light work (i.e., ten 21 pounds) to frequent pushing and pulling. 20 C.F.R. §§ 404.1567(b) and 22 416.967(b). 23 Plaintiff fails to cite any medical opinion that Plaintiff cannot push or pull 24 more than thirty pounds. Dr. Grossman precluded Plaintiff from “forceful pushing 25 or pulling,” but Plaintiff does not discuss what “forceful” means or why this 26 limitation would be more restrictive than Plaintiff’s RFC. 27 28 Plaintiff perhaps meant to cite to August 2012 records from Dr. Campwala who concluded that Plaintiff could return to work if it did not involve lifting, 24 1 pushing, or pulling more than thirty pounds. AR 434, 714. The ALJ gave Dr. 2 Campwala’s opinions “great probative weight” because they were “consistent with 3 the mild objective findings at that time and the overall medical evidence.” AR 44. 4 Plaintiff does not assert that his prior work required frequently pushing or 5 pulling items weighing more than thirty pounds, or even more than ten pounds. 6 Plaintiff has thus failed to show prejudicial legal error. 7 8 9 e. Postural Activities and Bending. In his progress report after Plaintiff’s condition post-lumbar spine surgery had stabilized, Dr. Grossman limited Plaintiff to “occasionally” climbing, 10 balancing, stooping, kneeling, crouching, crawling, and twisting. AR 845. The 11 ALJ also limited Plaintiff to climbing, stooping, kneeling, crouching or crawling 12 occasionally (i.e., less than one third of the time). AR 41. The RFC does not 13 specifically address squatting or bending. 14 Plaintiff does not explain how “crouching” is meaningfully different from 15 “squatting” or how “stooping” is meaningfully different from “bending,” 16 particularly where Plaintiff contends his difficulty is with “bending over” or 17 “bending down.” JS at 17; see also AR 151 (SSA form equating “stooping” with 18 “bending at the waist”). Again, Plaintiff has failed to show legal error. 19 3. 20 In March 2014, Dr. Grossman opined that Plaintiff could engage 21 “frequently” in reaching, handling, and fingering. AR 845. Later, but prior to 22 Plaintiff’s cervical spinal fusion surgery, he opined that Plaintiff was precluded 23 from work “at or above shoulder level,” but he did not further restrict Plaintiff’s 24 handling or fingering. AR 1325. 25 Handling, Fingering, and Overhead Reaching. Consistent with Dr. Grossman’s opinion, the ALJ limited Plaintiff to 26 “frequent” handling, fingering, and overhead reaching. AR 41-42. Plaintiff argues 27 that he is only capable of “occasional reaching, handling, and fingering” and no 28 overhead reaching. JS at 17. Plaintiff, however, does not cite any medical opinion 25 1 2 that he cannot engage in at least “frequent” handling and fingering. Regarding overhead reaching, Dr. Grossman’s December 2014 report does 3 preclude reaching at or above shoulder level due to neck pain, but Plaintiff 4 subsequently underwent cervical spinal fusion surgery in January 2016. AR 1130, 5 1325. In July 2016, Dr. Grossman did not specify any work limitations attributable 6 to Plaintiff’s cervical condition, because Plaintiff’s recovery from surgery was 7 ongoing. AR 1276-77. 8 Plaintiff cites AR 434 to support his contention that he cannot reach 9 overhead. JS at 17. This is an August 2012 treating record from Dr. Campwala 10 stating, “The patient is being seen for a routine clinic follow-up of lumbar strain. 11 … Current treatment includes physical therapy …. PT recommends 12 additional 12 sessions. Pt doing much better but unable to reach overhead and bend down.” AR 13 434. In that same report, however, Dr. Campwala opined that Plaintiff should 14 return to work with the only restrictions being “no heavy lifting greater than 30 15 pounds” and “no pushing or pulling greater than 30 pounds.” Id. Of course, this 16 record from just months after Plaintiff’s accident does not reflect his improvement 17 after surgery and physical therapy. Physical therapy records from August 2013 18 indicate Plaintiff could bend forward and reach his mid-shin. AR 585. His 19 shoulder and elbow movements scored either 4 or 5 out of 5, including shoulder 20 flexion (i.e., overhead reaching). AR 586. By November 2013, his right shoulder 21 flexion score was 5-/5 and his left was 4+/5. AR 513. In 2015, based on 22 Plaintiff’s medical records, Drs. Linder and Ligon both found that Plaintiff’s 23 overhead reaching ability was limited, but that Plaintiff could still perform 24 overhead reaching “frequently.” AR 152, 170. 25 There are no post-cervical spine surgery medical opinions concerning 26 Plaintiff’s reaching abilities. Plaintiff argues that the ALJ’s recognition that 27 Plaintiff cannot turn his head side to side is inconsistent with finding Plaintiff 28 capable of frequent reaching, because “reaching might well involve the frequent 26 1 turning of the neck to reach an item, depending on where the item is located and 2 how often the item is needed.” JS at 5. Reaching, however, does not necessarily 3 require turning one’s head from side to side. Plaintiff failed to show error. 4 IV. 5 CONCLUSION 6 7 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 8 9 Dated: November 15, 2017 10 _____________________________ KAREN E. SCOTT United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27

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